United States District Court, D. Hawaii
ORDER GRANTING MOTION TO CONVERT TEMPORARY
RESTRAINING ORDER TO A PRELIMINARY INJUNCTION
Derrick K. Watson, United States District Judge.
March 15, 2017, the Court temporarily enjoined Sections 2 and
6 of Executive Order No. 13, 780, entitled, “Protecting
the Nation from Foreign Terrorist Entry into the United
States, ” 82 Fed. Reg. 13209 (Mar. 6, 2017).
See Order Granting Mot. for TRO, ECF No. 219
[hereinafter TRO]. Plaintiffs State of Hawai‘i and
Ismail Elshikh, Ph.D., now move to convert the TRO to a
preliminary injunction. See Pls.' Mot. to
Convert TRO to Prelim. Inj., ECF No. 238 [hereinafter
consideration of the parties' submissions, and following
a hearing on March 29, 2017, the Court concludes that, on the
record before it, Plaintiffs have met their burden of
establishing a strong likelihood of success on the merits of
their Establishment Clause claim, that irreparable injury is
likely if the requested relief is not issued, and that the
balance of the equities and public interest counsel in favor
of granting the requested relief. Accordingly,
Plaintiffs' Motion (ECF No. 238) is GRANTED.
Court briefly recounts the factual and procedural background
relevant to Plaintiffs' Motion. A fuller recitation of
the facts is set forth in the Court's TRO. See
TRO 3-14, ECF No. 219.
The President's Executive Orders
Executive Order No. 13, 769
January 27, 2017, the President of the United States issued
Executive Order No. 13, 769 entitled, “Protecting the
Nation from Foreign Terrorist Entry into the United States,
” 82 Fed. Reg. 8977 (Jan. 27, 2017). On March 6, 2017,
the President issued another Executive Order, No. 13, 780,
identically entitled, “Protecting the Nation from
Foreign Terrorist Entry into the United States” (the
“Executive Order”), 82 Fed. Reg. 13209. Like its
predecessor, the Executive Order restricts the entry of
foreign nationals from specified countries and suspends the
United States refugee program for specified periods of time.
Executive Order No. 13, 780
1 of the Executive Order declares that its purpose is to
“protect [United States] citizens from terrorist
attacks, including those committed by foreign
nationals.” By its terms, the Executive Order also
represents a response to the Ninth Circuit's per curiam
decision in Washington v. Trump, 847 F.3d 1151.
According to the Government, it “clarifies and narrows
the scope of Executive action regarding immigration,
extinguishes the need for emergent consideration, and
eliminates the potential constitutional concerns identified
by the Ninth Circuit.” Notice of Filing of Executive
Order 4-5, ECF No. 56.
2 suspends from “entry into the United States”
for a period of 90 days, certain nationals of six countries
referred to in Section 217(a)(12) of the Immigration and
Nationality Act, 8 U.S.C. § 1101 et seq.: Iran,
Libya, Somalia, Sudan, Syria, and Yemen. 8 U.S.C. §
1187(a)(12); Exec. Order § 2(c). The suspension of entry
applies to nationals of these six countries who (1) are
outside the United States on the new Executive Order's
effective date of March 16, 2017; (2) do not have a valid
visa on that date; and (3) did not have a valid visa as of
5:00 p.m. Eastern Standard Time on January 27, 2017 (the date
of Executive Order No. 13, 769). Exec. Order § 3(a). The
90-day suspension does not apply to: (1) lawful permanent
residents; (2) any foreign national admitted to or paroled
into the United States on or after the Executive Order's
effective date (March 16, 2017); (3) any individual who has a
document other than a visa, valid on the effective date of
the Executive Order or issued anytime thereafter, that
permits travel to the United States, such as an advance
parole document; (4) any dual national traveling on a
passport not issued by one of the six listed countries; (5)
any foreign national traveling on a diplomatic-type or other
specified visa; and (6) any foreign national who has been
granted asylum, any refugee already admitted to the United
States, or any individual granted withholding of removal,
advance parole, or protection under the Convention Against
Torture. See Exec. Order § 3(b). Under Section
3(c)'s waiver provision, foreign nationals of the six
countries who are subject to the suspension of entry may
nonetheless seek entry on a case-by-case basis.
6 of the Executive Order suspends the U.S. Refugee Admissions
Program for 120 days. The suspension applies both to travel
into the United States and to decisions on applications for
refugee status. See Exec. Order § 6(a). It
excludes refugee applicants who were formally scheduled for
transit by the Department of State before the March 16, 2017
effective date. Like the 90-day suspension, the 120-day
suspension includes a waiver provision that allows the
Secretaries of State and Homeland Security to admit refugee
applicants on a case-by-case basis. See Exec. Order
§ 6(c). Unlike Executive Order No. 13, 769, the new
Executive Order does not expressly refer to an
individual's status as a “religious minority”
or refer to any particular religion, and it does not include
a Syria-specific ban on refugees.
filed a Second Amended Complaint for Declaratory and
Injunctive Relief (“SAC”) on March 8, 2017 (ECF
No. 64) simultaneous with their Motion for TRO (ECF No. 65).
The State asserts that the Executive Order inflicts
constitutional and statutory injuries upon its residents,
employers, and educational institutions, while Dr. Elshikh
alleges injuries on behalf of himself, his family, and
members of his Mosque. SAC ¶ 1.
to Plaintiffs, the Executive Order results in “their
having to live in a country and in a State where there is the
perception that the Government has established a disfavored
religion.” SAC ¶ 5. Plaintiffs assert that by
singling out nationals from the six predominantly Muslim
countries, the Executive Order causes harm by stigmatizing
not only immigrants and refugees, but also Muslim citizens of
the United States. Plaintiffs point to public statements by
the President and his advisors regarding the implementation
of a “Muslim ban, ” which Plaintiffs contend is
the tacit and illegitimate motivation underlying the
Executive Order. See SAC ¶¶ 35-60.
Plaintiffs argue that, in light of these and similar
statements “where the President himself has repeatedly
and publicly espoused an improper motive for his actions, the
President's action must be invalidated.” Pls.'
Mem. in Supp. of Mot. for TRO 2, ECF No. 65-1. Plaintiffs
additionally present evidence that they contend undermines
the purported national security rationale for the Executive
Order and demonstrates the Administration's pretextual
justification for the Executive Order. E.g., SAC
¶ 61 (citing Draft DHS Report, SAC, Ex. 10, ECF No.
March 15, 2017 TRO
Court's nationwide TRO (ECF No. 219) temporarily enjoined
Sections 2 and 6 of the Executive Order, based on the
Court's preliminary finding that Plaintiffs demonstrated
a sufficient likelihood of succeeding on their claim that the
Executive Order violates the Establishment Clause.
See TRO 41-42. The Court concluded, based upon the
showing of constitutional injury and irreparable harm, the
balance of equities, and public interest, that Plaintiffs met
their burden in seeking a TRO, and directed the parties to
submit a stipulated briefing and preliminary injunction
hearing schedule. See TRO 42-43.
March 21, 2017, Plaintiffs filed the instant Motion (ECF No.
238) seeking to convert the TRO to a preliminary injunction
prohibiting Defendants from enforcing and implementing
Sections 2 and 6 of the Executive Order until the matter is
fully decided on the merits. They argue that both of these
sections are unlawful in all of their applications and that
both provisions are motivated by anti-Muslim animus.
Defendants oppose the Motion. See Govt. Mem. in
Opp'n to Mot. to Convert TRO to Prelim. Inj., ECF No.
251. After full briefing and notice to the parties, the Court
held a hearing on the Motion on March 29, 2017.
Court's TRO details why Plaintiffs are entitled to
preliminary injunctive relief. See TRO 15-43. The
Court reaffirms and incorporates those findings and
conclusions here, and addresses the parties' additional
arguments on Plaintiffs' Motion to Convert.
Plaintiffs Have Demonstrated Standing At This ...